EXHIBIT 23(g)(2)
AMENDMENT TO CUSTODIAN SERVICES AGREEMENT
-----------------------------------------
This Amendment dated as of June 17, 2003 hereby amends the Custodian
Services Agreement dated as of September 1, 2000 by and between THE KELMOORE
STRATEGY(R) VARIABLE TRUST (the "Fund") and PFPC TRUST COMPANY ("PFPC Trust")
(the "Agreement").
WHEREAS, the Fund and PFPC Trust hereby agree to amend the Agreement;
and NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. In the first paragraph of the Agreement, the word "business"
is hereby replaced with the word "statutory".
2. The following sentence is hereby added to the end of Section
5(c) of the Agreement: PFPC Trust shall notify the Investment
Advisor if the Oral Instructions differ from the Written
Instructions received.
3. Section 6(c) is hereby deleted in its entirety and replaced
with the following: (c) Conflicting Advice. In the event of a
conflict between directions or advice or Oral Instructions or
Written Instructions PFPC Trust receives from the Fund, and
the advice it receives from counsel, PFPC Trust shall notify
Fund counsel if it intends to follow direction or advice
different from that provided by the Fund.
1
4. Section 12, Indemnification is hereby deleted in its entirety
and replaced with the following:
12. INDEMNIFICATION. The Fund, on behalf of each Portfolio,
agrees to indemnify, defend and hold harmless PFPC Trust and
its affiliates, including their respective officers,
directors, agents and employees from all taxes, charges,
expenses, assessments, claims and liabilities (including,
without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities
Laws and any state and foreign securities and blue sky laws)
arising directly from any action or omission to act which PFPC
Trust takes in connection with the provision of services to
the Fund, provided that the Fund shall not be liable for any
consequential, special or punitive damages. Neither PFPC
Trust, nor any of its affiliates, shall be indemnified against
any such liabilities or any expenses incident to such
liability caused by PFPC Trust's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless
disregard in the performance of PFPC Trust's activities under
this Agreement. The provisions of this Section 12 shall
survive termination of this Agreement.
5. Section 13, Responsibility of PFPC Trust, is hereby deleted in
its entirety and replaced with the following:
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action
hereunder on behalf of the Fund or any Portfolio
except as specifically set forth herein or as may be
specifically agreed to by PFPC Trust and the
2
Fund in a written amendment hereto. PFPC Trust shall
be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in
good faith in performing services provided for under
this Agreement. PFPC Trust shall be liable only for
any damages arising out of PFPC Trust's failure to
perform its duties under this Agreement to the extent
such damages arise out of PFPC Trust's willful
misfeasance, bad faith, gross negligence or reckless
disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, (i) neither PFPC Trust nor the Fund shall
be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or
indirectly by reason of circumstances beyond its
reasonable control, including without limitation acts
of God; action or inaction of civil or military
authority; public enemy; war; terrorism; riot; fire;
flood; sabotage; epidemics; labor disputes; civil
commotion; interruption, loss or malfunction of
utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or
non-performance by a third party; and (ii) PFPC Trust
shall not be under any duty or obligation to inquire
into and shall not be liable for the validity or
invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other
information which PFPC Trust reasonably believes to
be genuine.
3
(c) Notwithstanding anything in this Agreement to the
contrary, (i) neither PFPC Trust, the Fund nor their
affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by
PFPC Trust or its affiliates and (ii) PFPC Trust's
cumulative liability to the Fund for all losses,
claims, suits, controversies, breaches or damages for
any cause whatsoever (including but not limited to
those arising out of or related to this Agreement)
and regardless of the form of action or legal theory
shall not exceed the lesser of $100,000 or the fees
received by PFPC Trust for services provided
hereunder during the 12 months immediately prior to
the date of such loss or damage.
(d) No party may assert a cause of action against PFPC
Trust or the Fund or any of their affiliates that
allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable,
commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for
which the other party may become responsible; such
damages are subject to the limits and terms set forth
in paragraph (c) above.
(f) Notwithstanding anything in this Agreement to the
contrary (other than as specifically provided in
Section 14(h)(ii)(B)(4) and Section 14(h)(iii)(A) of
this Agreement), the Fund shall be responsible for
4
all filings, tax returns and reports on any
transactions undertaken pursuant to this Agreement,
or in respect of the Property or any collections
undertaken pursuant to this Agreement, which may be
requested by any relevant authority. In addition, the
Fund shall be responsible for the payment of all
taxes and similar items (including without limitation
penalties and interest related thereto).
(g) The provisions of this Section 13 shall survive
termination of this Agreement.
(h) Notwithstanding anything in this Agreement to the
contrary, PFPC Trust shall have no liability either
for any error or omission of any of its predecessors
as servicer on behalf of the Fund or for any failure
to discover any such error or omission.
6. The following sentence is hereby added to the end of the first
paragraph of Section 14(e): Notwithstanding anything in this
Agreement to the contrary, PFPC Trust's use of a Book-Entry
System shall comply with the requirements of Rule 17f-4 under
the 1940 Act.
7. The following is hereby added to the end of Section 14(h) of
the Agreement:
(iii) Other Matters.
(A) subject to receipt of such documentation and
information as PFPC Trust may request, PFPC
Trust will, in such jurisdictions as PFPC
Trust may agree from time to time, seek to
reclaim or obtain a reduction with respect
to any withholdings or other taxes relating
to assets maintained hereunder (provided
that PFPC Trust will not be liable for
5
failure to obtain any particular relief in a
particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or
withhold any sum in respect of tax which
PFPC Trust considers is required to be
deducted or withheld "at source" by any
relevant law or practice.
All other terms and conditions of the Agreement remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the month, day and year first above written.
PFPC TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx III
-------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Vice President
-------------------------------
THE KELMOORE STRATEGY(R) VARIABLE TRUST
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------
Title: Secretary
-------------------------------
6
